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Given the popularity and prevalence of mobile devices such as smart phones and tablets in today’s world, it is no surprise that Bring Your Own Device (“BYOD”) programs have become an increasingly common arrangement for organizations. BYOD programs allow employees to use their own mobile devices for both personal and business purposes, blurring the traditional line between work and play. A recent report indicates that more than 75% of Canadian businesses support employee-purchased smartphones and tablets in the workplace.

Properly implemented BYOD programs are appealing to organizations for many reasons. First, they allow them to save substantially on equipment costs because the phones are purchased and owned by the employees. Second, they allow the organization to stay in touch with the employees at almost all times, because the employees are generally carrying the device with them even after work. Third, employees may well like the arrangement as it is much more convenient to carry one device than two (a personal device and a business one). Therefore, the program can result in lower cost, higher productivity and greater employee satisfaction, a win-win situation for both the organization and employees – you would think.

While BYOD programs may seem attractive to organizations, there are significant privacy, security and even overtime risks involved that must be carefully considered, such as:

With employees bringing in different devices, controlling the access and capabilities of such devices or ensuring the devices have adequate protection against malicious activities can be difficult.

Too much monitoring can infringe on employee privacy but not having sufficient monitoring to ensure organizational information is secure can have dire consequences.

Organizations often have confidential company information on their systems such as information on new products, new ventures and new initiatives. Any security risk leading to leakage of such information may severely compromise the competitive advantage of the organization.

Organizational systems may also contain private personal information of clients, which organizations are obligated to keep confidential. Having such information divulged to outsiders even if unintentionally, can result in personal information protection or privacy related lawsuits.

Finally, with employees being available 24/7, they might decide to try to claim overtime for the time that they are allegedly working outside of the workplace. The cost-savings of BYOD might not be so cheap after all. As such, any introduction of such BYOD programs must be properly managed, with due consideration given to both the cost-benefits and potential risks involved.

From a privacy perspective, the Federal, Alberta and British Columbia privacy commissioners have compiled a set of guidelines to address the privacy and security risks for organizations considering a BYOD arrangement, a full copy of which can be found here. The following highlights some of the key points of the new guidelines on BYOD:

As different organizations have different types and volumes of sensitive or private information, PIA is needed to identify risks related to the collection, use, storage, retention, and disclosure of such information, while TRA addresses the specific organizational risks involved in adopting a BYOD program. Such assessments help to determine if and how the program should be implemented.

2. Developing and Implementing a BYOD Policy

A specific BYOD policy should be developed, addressing issues such as user responsibilities, acceptable company monitoring practices, application management, security requirements and access requests, as well as necessary restrictions regarding which devices, systems and storage services are authorized, who can be on the program and what information can be accessed through it. The policy must be clearly communicated in order for it to be understood and enforced. Proper training to employees on managing various types of risks can also aid in the implementation of a good BYOD policy.

3. Mitigating organizational risks

Organizational information should be stored in a centralized location within the organization and not on individual personal devices. Specific software, such as MDM software, can be installed to manage connections of the device to the organizational server. An agreement on the device administration responsibilities should be signed by both the employee and the organization. Another way of reducing risk is containerization, which involves creating two compartments on the device, one for personal purposes and one for business purposes. Containerization enables the organization to effectively manage the business compartment.

4. Addressing software vulnerabilities

Encryptions and patch updates can prevent malicious cyber activities that can adversely affect the organization. Responsibilities must be clearly established in the policy and agreed to by the BYOD users. A list of approved apps should also be developed, with an accompanying policy and procedure for their installation and management, to prevent misconfigured or improper apps from being used. Effective authentication can be implemented at the device, container and/or user levels.

5. Incident Management

A clear incident management process should be available so that when something goes wrong, immediate remedial actions can be taken to protect organizational information, such as remote removal of information or information access on the device. To do so effectively, a good inventory management system maintaining the current authorized devices and apps is essential.

Implications for businesses

Organizations need to be cognizant of information security when using BYOD programs, not only because of potential financial and reputation losses due to leakages of sensitive company information, but also because they have the legal responsibility to keep personal information confidential. BYOD is not for all organizations as it depends on the risks involved as well as the cost implications. Technology is forever changing and BYOD policies and procedures need to keep up with latest developments. Effective development and management of BYOD programs requires devoted resources and ongoing commitment at all levels of an organization. An appropriate balance needs to be struck to ensure that measures to protect organizational information are not unnecessarily infringing on employee privacy or excessively compromising usability.

In developing any BYOD policies, organizations ought to pay particular attention to this set of guidelines by the privacy commissioners. When there are privacy complaints or litigation related to the BYOD programs, these guidelines may be used to determine if proper measures have been adopted by the organization to avoid security risks and privacy breaches.

Employees occasionally leave behind personal property following termination of employment. Whether it is discovered immediately or long after the employee has departed, many Alberta employers would be surprised to learn that they have certain obligations to that former employee with respect to the treatment of the personal property.

The Unclaimed Personal Property and Vested Property Act (the “Act”) applies to Alberta employers with respect to most tangible and intangible personal property worth more than $1,000.00 or $250.00, respectively. Intangible property is defined in the Act as any interest held, issued or owing by a business, government or government institution, and includes items such as money, cheques, securities, dividends and bonds. Tangible property is defined in the Act as anything that is not intangible property. Generally, however, tangible property is physical property such as an employee’s personal belongings, equipment or tools.

If an employee leaves behind property meeting the definitions found in the Act, employers must store the property for 5 years, notify the individual in a prescribed form and at a prescribed time, and then, if it remains unclaimed, deliver that property to the Minister of Finance. The employer also has to retain all records relating to the property for a period of 10 years following delivery.

If the total of the unclaimed tangible property left behind is worth less than $1,000.00, then the common law will likely apply. Under those circumstances, an employer is typically required to retain the property for a reasonable period of time before it is deemed to have been abandoned by its owner, and could then be sold or otherwise disposed. In such circumstances, should an owner object and bring an action to recover its converted property, the court would consider four factors: the passage of time, the nature of the transaction, the owner’s conduct, and the nature and value of the property.

We recommend that Alberta employers implement a written policy to deal with employees’ personal property to restrict the instances of personal property being left at work, to ensure compliance with all requirements under the Act and the common law, and to ensure that the chain of documentation regarding property left with the employer is complete and accurate. In particular, such a policy could:

Require employees to take all personal property with them following termination of employment. Implement a supervision, checklist or packing process to ensure property is removed on departure;

Identify when property valued at less than $1,000.00 and not governed by other applicable legislation will be deemed abandoned;

Notify employees that the employer may impose a charge for any costs associated with storage or valuation of personal property left behind, for the cost of providing notice, and any for costs associated with the payment, transfer or delivery of personal property to the Ministry if required under the Act;

Implement a regime for contacting a former employee regarding his/her property and properly documenting all attempts and any successful contact. Efforts should commence immediately and be documented (time/date/method/who). Sending a recorded letter may provide additional proof of both best efforts on the part of the employer, and that the former employee has been receiving the information about his/her property, and

Provide a methodology for properly documenting the chain of custody of the personal property (including where it is being stored and any expenses that are being incurred for storage).

A recent case out of Calgary, Karmel v. Calgary Jewish Academy (2015 ABQB 731), presents some valuable lessons for Alberta employers. This case involves a wrongful dismissal lawsuit by a terminated School Principal, Mr. Karmel, who was alleged to have been disobedient. Ultimately, the Court found that the School did not meet its burden in proving just cause and that it pursued “a strategy of papering a path to Mr. Karmel’s termination in such a way as to spare the CJA from paying the balance of Mr. Karmel’s salary under the remaining term of his contact. This was a wrongful dismissal carried out in bad faith”. Mr. Karmel had a 5 year fixed term contract (without an early exit clause), which meant that he was entitled to the value of the remainder of his contract.

While the facts are interesting, they are not particularly novel – there are many cases where employers have angered judges by alleging cause and then failing to prove it. What is more interesting is paragraphs 89-103 of the decision where the Court also awarded Mr. Karmel $200,000 in “aggravated damages” despite the fact that it appears that he did not present any evidence (other than his own testimony) that he actually suffered mental distress. Obviously the Court was highly displeased with the Employer’s behavior and felt it acted in bad faith. It cited 3 well known Supreme Court of Canada cases (Wallace v. United, Keays v. Honda, and Bhasin v. Hrynew) as authorities for the aggravated damage award.

We understand that this case is being appealed and think that it is the perfect case for the Alberta Court of Appeal to clarify the law in this area and answer the following questions:

Was the Wallace v. United analysis replaced by Keays v. Honda? We had always thought so but this case casts doubt on that view.

Given Keays v. Honda, should an employee be awarded a significant damage award when they do not present any objective medical evidence that they have actually suffered mental distress?

How do Bhasin v. Hrynew and Keays v. Honda work together? If an employer acts in bad faith, is an employee (because of the Bhasin v. Hrynew analysis), no longer required to prove mental distress to receive a significant aggravated damages award? This would seem to take us back to the Wallace era.

We will monitor the outcome of the appeal. For now, this case reaffirms 2 age old lessons that Alberta employers should remember: Don’t allege cause unless you can prove it. And remember that, barring exceptional cases, you won’t prove it. Also don’t hire an employee on a 5 year fixed term contract without an early exit clause!

If you have any questions about this or related topics, please contact Ben Aberant or Shana Wolch

The Ontario Superior Court of Justice in Doe v D (“Doe”) recently introduced the tort of “public disclosure of private facts”, expanding the scope of privacy protection in Canadian common law.[1] In this case, the Plaintiff brought an action against the Defendant, her ex-boyfriend, for posting a private video of her onto a pornography website. Importantly, the Court found that the Plaintiff established a cause of action for the invasion of privacy by way of a new tort: the tort of public disclosure of private facts. The elements of the tort of public disclosure of private facts are as follows:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication

The Plaintiff was awarded damages in the amount of $100,000, and was granted injunctive relief.

This case creates a novel tort that is especially likely to arise in the employment context. For instance, it is foreseeable that embarrassing facts relating to employers, clients, or colleagues, could be publicly disclosed by employees in a way that would meet the elements of this tort. Further, employers could be held vicariously liable for offensive disclosure by their employees. As such, Alberta employers may want to consider taking steps to mitigate against such privacy claims, such as:

The Ontario Court of Appeal has further shattered the “24 month maximum” myth. In Keenan v. Canac Kitchens Ltd., the Court of Appeal upheld a Trial Judge’s finding that two long service workers were “dependent contractors” and therefore entitled to 26 months’ reasonable notice on termination.

We do not think that this appeal decision is particularly ground-breaking. While unusual, it is not the first time that a Court has awarded more than 24 months’ notice (we are aware of at least one case where a court awarded 30 months). Also, dependant contractors have long been a recognized category of worker. However, the decision does provide Alberta employers with some valuable reminders:

Before engaging a worker as an “independent contractor”, consider that the label that the parties agree to and put on the relationship will most likely be irrelevant to a Court’s view of whether the worker is an employee or contractor. Most contactor agreements contain a clause stating something like “the parties agree that [NAME] is an independent contractor and not an employee”. That clause is of no value to an employer when trying to defeat the worker’s wrongful dismissal lawsuit.

A court will look at the true nature of the relationship. As shown by the Trial Judge in Canac, this means examining a series of factors including: “exclusivity, control, investment, risks, expectation of profit and, whose business is it?” Even after these factors are analysed and an employer believes that it is appropriate to treat a worker as an independent contractor, that employer really has no comfort that when the relationship ends the worker will not claim that he or she is an employee and sue for wrongful dismissal.

In our experience, it is usually the worker that wants to be treated as an independent contractor, mostly likely because of the tax advantages. Employers should make this decision carefully and after a thoughtful analysis. It often provides the employer with no advantages. Most employers are already set up to make employment related deductions and pay statutory entitlements such as vacation pay so there may be little advantage to the employer – especially if the intention is to retain the worker for the long term.

Certainly, there are many times when it is very appropriate to treat a worker as an independent contractor. In cases that appear to be on the line, employers may want to treat the worker as an employee. If an employer is concerned about possible severance obligations (that independent contractors are not entitled to), it has the option of (a) hiring the employee with a written employment agreement that limits the employee to the statutory minimum pay in lieu of notice, or (b) hiring the employee on a short fixed term contract. Both of these options may be increasingly appropriate in today’s economy where there may be no need for those specific services indefinitely or a few months down the road.

A recent Ontario Superior Court decision reinforces some basic principles previously discussed on this Blog (and unfortunately often missed or forgotten by employers). In Asgari v 975866 Ontario Ltd, a motion for summary judgment was decided in the Plaintiff’s favour. One issue was whether a clause, purporting to limit the Plaintiff’s pay in lieu of notice entitlements to the statutory minimum, was enforceable.

Unfortunately for the Defendant employer, the clause was contained in an employee handbook, not in the Plaintiff’s offer of employment. Making matters worse, the employee handbook contained the following fatal language: “the Employee Handbook is not a contact of employment”. The Court stated that “[a]s a result, it is confusing if not contradictory about whether the plaintiff waived his right to seek common law damages beyond that available pursuant to the Employment Standards Act”.

It is important for an employer to have a properly drafted severance clause. These types of clauses are very technical and need to be drafted with precision, to avoid unintentionally violating the minimum standards of the Code and being declared invalid (usually resulting in expensive litigation); and

Severance clauses should ideally be contained in an executed employment agreement signed by the employee prior to starting employment. In our experience, placing such clauses in other documents, such as employee handbooks, can create ambiguity and make it more difficult to convince a court that the employee acknowledged and accepted the severance limiting clause.

If you have any questions about this or related topics, please contact Ben Aberant or Shana Wolch

The holiday season is a jolly-busy time to be an employment lawyer. Not only do we get to spend time with our friends and families, but we are also often asked to help our clients deal with the fallout of the infamous alcohol induced holiday party incident. Of course, an ounce of prevention is worth a pound of cure and here are some tips to planning and hosting a successful and (hopefully) incident free holiday party.

Alcohol Consumption

The over-consumption of alcohol can lead to a number of unfavourable outcomes. Consider limiting the in-take of alcohol by guests by: setting a fixed period of time where alcohol will be served; restricting the types of alcohol that are served (e.g. serving wine and beer options, excluding spirits or hard liquor); providing a controlled number of drink tickets per guest; hiring an independent bartender; and, serving lots of delicious food so guests don’t only drink.

Location & Transportation

Consider holding the party offsite. Consider safe transportation options that are available for employees when leaving the party. Pre-arrange designated drivers or transportation with a local company; ensure that there are taxis on standby and/or provide taxi chits to employees; or use a licensed operator to drive the individual and his/her vehicle home.

Discrimination

Given the abundance of faiths, religious denominations and practices with which employees may affiliate themselves, ensure that holiday parties remain non-denominational in nature. Consider the possibility that alcoholics or those recovering might be attending and ensure that there are tasty non-alcoholic alternatives. Ensure that employees don’t feel excluded and eliminate the likelihood of a human rights violation.

Harassment

Where alcohol is being consumed, there is an increased risk of inappropriate behaviour. In order to remind employees of expectations regarding mutual respect, it is good practice to distribute a copy of the organization’s anti-harassment policy well in advance of the holiday party. Ensure that employees are mindful of their actions toward others while in attendance. Including a copy of the organization’s dress code may also be worthwhile, reminding employees that expectations for appropriate attire in the workplace remain unchanged. Consider inviting spouses/partners – it might help keep behaviour in line.

Communication & Monitoring

Transparent and consistent communication of expectations surrounding alcohol consumption, appropriate behaviour and suitable attire, well in advance of the holiday party, will ensure that employees are aware of their responsibilities. Providing details about transportation options prior to the holiday party, will afford employees with the opportunity to arrange their journey home safely and without setback.

Assigning one or two individuals from the organization with the responsibility to monitor guests’ behaviour and alcohol consumption, and ensure that they obtain appropriate transportation home, will further safeguard employees and reduce the organization’s liabilities.

If you have any questions please contact Ben Aberant or Shana Wolch. Happy Holidays!

McCarthy Tétrault launched its 14th blog today, Québec Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies in Québec. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Québec marketplace. We encourage you to visit the blog and subscribe for regular updates.

Please note that for the time being, all articles will be published in French only.

Our first minimum wage hike took effect today. Alberta’s minimum wage is now $11.20 per hour, which is a $1.00 increase and the third highest in Canada. Servers who serve liquor will see a $1.50 increase, as their minimum wage has risen from $9.20 to $10.70. The differential between servers (who serve liquor) and the rest of Albertans is expected to be eliminated in 2016.

Alberta is not alone however. Minimum wage has also increased today in Saskatchewan (up $0.30 to $10.50), Manitoba (up $0.30 to $11.00), Ontario (up $0.25 to $11.25), and Newfoundland & Labrador (up $0.25 to $10.50). British Columbia raised its minimum wage on September 15 (up $0.20 to $10.45). New Brunswick is now the lowest minimum wage in the country at $10.30 per hour. The Northwest Territories remains the highest minimum wage at $12.50 per hour.

This increase to Alberta’s minimum wage is the first step in the anticipated hike to $15.00 per hour in 2018.

On October 14, 2015, the Alberta Human Rights Commission will host a complimentary webinar entitled: Developing and Implementing an Effective Harassment Prevention Policy in the Workplace.

A workplace harassment policy is not strictly required under Alberta’s current Alberta Human Rights or Occupational Health and Safety legislation. However, we anticipate that amendments are forthcoming to the Occupational Health and Safety Code that will require employers to implement a harassment policy/procedure similar in substance to what is currently required with respect to violence in the workplace under Part 27 of the Occupational Health and Safety Codes, one of the few required employment policies/procedures in Alberta.

Although a workplace harassment policy is not strictly required by current legislation in Alberta, we generally advise employers to implement a harassment policy to assist in discharging its general duties and limiting its potential liability under the Alberta Human Rights Act and the common law. As such, we expect that the webinar will be of value to human resources personnel and note that the Alberta Human Rights Commission is soliciting questions with respect to developing or implementing a harassment prevention policy in advance of the webinar. Questions can be directed by email to educationcommunityservices@gov.ab.ca.

If would like to discuss your organization’s obligations with respect to harassment in the workplace or potential changes or implementations to your organization’s policies/procedures, please contact any member of our Labour and Employment group.

About This Blog

Alberta Employer Advisor offers our perspectives on the latest legal developments applicable to the workplace and of interest to our clients. It provides our insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce.